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2008 DIGILAW 520 (KER)

Radha v. State of Kerala

2008-08-22

V.K.MOHANAN

body2008
JUDGMENT V.K. Mohanan, J. 1. This appeal is preferred by accused Nos. 1 and 2 in SC No. 132 of 2007 on the file of the Court of the IVth Additional Sessions Court (Ad hoc II), Thodupuzha. By its judgment dated 08/01/2008, the accused / appellants were convicted under S.55(b), (g), (i) and 8(2) of the Abkari Act and sentenced them to undergo simple imprisonment for two years each and fine of Rs.1 lakh each in default to simple imprisonment for three months each for the offence under S.55(b) of the Abkari Act and no separate sentence is passed for the offence under S.55(g) and 8(2) of the Abkari Act though they were found guilty for the said offences. It is the above judgment, conviction and sentence are challenged in this appeal. 2. The allegation against the appellants is that they were found engaged in distilling arrack and keeping distilled arrack and thereby committed offences punishable under S.55(b), (g), (i) and 8(2) of the Abkari Act. According to the prosecution, the said offences were detected when PW 3 conducted a raid at about 11.30 p.m. on 13/12/2005 in the thicket near I.D.A. ground, Idukki, based upon an information received by him at about 11 p.m. on 13/12/2005. Based upon the information, PW 3 proceeded to the place of occurrence after securing the presence of two witnesses and he saw A1 pouring some liquid from a bucket to a 2½ litre can using a funnel with the help of accused No. 2. According to PW 1, on seeing the police party, accused ran away and made their escape and though they were chased, it resulted in vain. Thereafter, PW 3 seized all the utensils used for illicit manufacturing of arrack and sample of arrack and wash seized on the basis of Ext. P1 Mahazar. After returning to the Police Station, he registered Cr. No. 254/2005 in the Idukki Police Station for the said offence. After completing the investigation, PW 4 laid charge before the Judicial First Class Magistrate Court, Idukki wherein CP No. 2/07 was instituted. As per the order dated 21/02/2007, the learned Magistrate committed the case as per his proceedings in CP No. 2/07 to the Court of Sessions wherein the case was taken on file as the sessions case and subsequently made it over to the Court of the IVth Additional Sessions Judge (Ad hoc II), Thodupuzha. 3. As per the order dated 21/02/2007, the learned Magistrate committed the case as per his proceedings in CP No. 2/07 to the Court of Sessions wherein the case was taken on file as the sessions case and subsequently made it over to the Court of the IVth Additional Sessions Judge (Ad hoc II), Thodupuzha. 3. During the trial of the case, PWs 1 to 4 were examined and Exts. P1 to P5 were marked from the side of the prosecution. Material objects are marked as MOs 1 to 10. No evidence either oral or documentary was adduced from the part of the defence. 4. During the trial, PW 3 the Sub Inspector of Police, who is alleged to have detected the crime, deposed regarding the detection of the offence in terms of the prosecution case. Ext. P1 is proved through PW 3. Though the prosecution has produced and examined PWs 1 and 2 as independent witnesses to prove the detection and seizure etc., they were turned hostile to the prosecution, but they admitted their signature in Ext. P1. PW 3 has stated that accused No. 2 was a Police driver and accused No. 1 is the wife of accused No. 2. It is also the case of PW 3 that he had prior acquaintance with accused Nos. 1 and 2 since accused No. 1 had filed a complaint before PW 3 and he had called both accused to the Police Station in connection with the enquiry pursuant to the said complaint. PW 3 had further deposed that he saw the accused and identified them with the help of the search light which was carrying. It is also the case of PW 3 that several cases are pending against accused No. 2. While admitting signatures of PWs 1 and 2 in Ext. P1 Mahazar, they deposed before the Court that their signatures were obtained from the Police Station. The Trial Court, after analysis of the evidence given by PWs 1 and 2, came to the conclusion that what they have deposed before the Court are not fully correct and true and therefore, their versions cannot be believed as such. Therefore, the Court below seems to have accepted the evidence of PWs 1 and 2 to the extent their admission of signature in Ext. P1 Mahazar. Therefore, the Court below seems to have accepted the evidence of PWs 1 and 2 to the extent their admission of signature in Ext. P1 Mahazar. PW 4, the Sub Inspector, deposed that he had laid their charge on completion of the investigation. 5. After the prosecution evidence, when the accused were questioned under S.313 of the CrPC, the accused No. 1, the first appellant herein took the stand that she was not in her house at the time of the alleged incident and one week prior to the alleged incident, accused No. 2 had filed a complaint before the Police Station against her brother and the Sub Inspector came to her house for enquiry in connection with this case and the Sub Inspector did not believe her version. It is also her case that on 11/12/2005, the Sub Inspector of Police PW 3 came to her house to take her to the Police Station and when the neighbours came to the spot and resisted the same, PW 3 ran away from the house and she flatly denied all the allegations with respect to the present incident. The case of accused No. 2 during his S.313 examination was that he was on Sabarimala special duty during December, 2005 and he suffered heart attack while on duty and on advice, he was on medical rest after his discharge from the hospital and his wife had filed a complaint against the brother of accused No. 1 and he further stated that during the time of the alleged incident, he was not in his house. 6. After S.313 questioning and hearing the defence as well as the prosecution, the Trial Court came to a conclusion that the accused have committed the offences alleged against them as the prosecution has proved the case accordingly. On finding of guilty of the accused, after hearing the question of sentence, the accused / appellants were sentenced to undergo simple imprisonment for two years each and a fine of Rs.1 lakh each and the default sentence fixed as three months simple imprisonment. Though the Trial Court found that the accused were guilty for the offences for which they were charged viz., under S.55(b), (g), (i) and 8(2) of the Abkari Act, the sentence is imposed only under S.55(b) of the Abkari Act and no separate sentence is awarded under S.55(g) and 8(2) of the Abkari Act. Though the Trial Court found that the accused were guilty for the offences for which they were charged viz., under S.55(b), (g), (i) and 8(2) of the Abkari Act, the sentence is imposed only under S.55(b) of the Abkari Act and no separate sentence is awarded under S.55(g) and 8(2) of the Abkari Act. It is the above finding, the conviction and sentence are challenged in this appeal. 7. I have heard learned counsel appearing for the appellants and also the learned Public Prosecutor. The learned counsel vehemently submits that there is no material or evidence to come into a finding that the appellants are guilty. It is the specific case of the counsel that absolutely there is no evidence to connect the accused with the alleged seizure of the contraband articles. Counsel pointed out that as the so called independent witnesses turned hostile, absolutely there is no evidence to corroborate the interested testimony of the official witnesses from an independent source. Counsel submits that the Trial Court committed wrong in convicting the accused based upon the only interested testimony of PW 3 and merely on the basis that the independent witnesses admitted their signature in Ext. P1 Mahazar. It is also the case of counsel that the Trial Court miserably failed to consider the depositions of PWs 1 and 2 that they were asked at force to sign on Ext. P1 Mahazar at the Police Station. Reiterating the ground taken in the appeal memorandum, counsel further submitted that there is no independent and reliable evidence to connect the accused with the alleged seizure, especially when the accused were not arrested from the scene of occurrence and the seizure was effected during the middle of night. It is also submitted that the Court below failed to appreciate the lacuna in the prosecution case in obtaining independent witnesses from near the place of occurrence in spite of the fact that there are several houses within 25 metres of the place of occurrence. Counsel further pointed out that the case of prosecution became more doubtful when they secured two witnesses far away from the spot in spite of the fact that there are several people residing near and around the place of occurrence. Counsel further pointed out that the case of prosecution became more doubtful when they secured two witnesses far away from the spot in spite of the fact that there are several people residing near and around the place of occurrence. The learned counsel invited my attention to paragraphs 37 and 38 of the decision of the Apex Court reported in Ritesh Chakarvarti v. State of Madhya Pradesh, 2006 KHC 1405 : JT 2006 (12) SC 416. "37. In Jagdish v. State of M.P., 2003 (9) SCC 159 , a three Judge Bench of this Court set aside a judgment of conviction where independent witnesses denied that search and seizure for recovery of opium took place in their presence. An adverse inference was further drawn as to why PW 1 Narcotic Sub Inspector therein brought down only one passenger from the bus if he did not have any prior information or entertain any suspicion regarding involvement of appellant therein being in possession or smuggling of opium. 38. In Bhola Rama Kushwaha v. State of M.P., 2001 (1) SCC 35 , this Court although opined that only because witnesses have turned hostile, appellant would be entitled to a judgment of acquittal as a matter of right, but having regard to the statement of prosecution witnesses inter alia to the effect that the police had called the witnesses in a police station and obtained their signatures on the paper and the statement of the independent witnesses that the accused was never interrogated and searched in their presence, the judgment of conviction and sentence was set aside." The learned counsel submits that the dictum laid down by the Apex Court in the above case will squarely apply in the present case and therefore, the conviction and sentence imposed against the appellants are liable to be set aside. 8. It is also pointed out by the counsel that PW 3 miserably failed to comply with the mandatory requirement of obtaining a female Constable when they got information regarding the involvement of female accused in the commission of the alleged offence. It is also the case of counsel for the appellants that the prosecution has miserably failed to prove that the contraband articles have been seized from the conscious possession of the accused. 9. It is also the case of counsel for the appellants that the prosecution has miserably failed to prove that the contraband articles have been seized from the conscious possession of the accused. 9. On the other hand, the learned Public Prosecutor submits that there is no illegality on the part of the Trial Court in convicting the appellants / accused on the basis of sole evidence of PW 3. The learned Public Prosecutor submits that PW 3 has got prior information regarding the illicit distillation of arrack done by accused Nos. 1 and 2 and PW 3 proceeded to the spot in pursuance of such information. According to the Public Prosecutor, PW 3 has stated that he could identify the accused who involved in the commission of the offence with the help of the search light. In order to attribute credence to the evidence of PW 3, the learned Public Prosecutor pointed out that PW 3 has got prior acquaintance with the accused since both of them were summoned to the Police Station for an enquiry in connection with a petition filed by the first accused against the second accused. According to the Public Prosecutor, the evidence of PW 3 can be safely believed for two reasons that PW 3 has prior acquaintance with accused Nos. 1 and 2 and they were clearly identified during the time of detection of the offence under the search light. Learned Public Prosecutor further submitted that the evidence of PW 3 is further corroborated by the evidence of independent witnesses viz., PWs 1 and 2 though they were turned hostile to the prosecution. As done by the Trial Court, relying on the admission of PWs 1 and 2 regarding their respective signatures in Ext. P1, the learned Public Prosecutor submits that, that part of their evidence can be accepted since during their examination, they gave a contradictory version which would sufficient to show that they turned hostile to the prosecution and resiled from their correct version given to the police, to help the accused. Thus, the learned Public Prosecutor submits that the finding arrived at by the Court below is absolutely correct and there is no illegality warranting interference of this Court in appeal. 10. I have carefully considered the rival contentions advanced by learned counsel for the appellants as well as the learned Public Prosecutor. Thus, the learned Public Prosecutor submits that the finding arrived at by the Court below is absolutely correct and there is no illegality warranting interference of this Court in appeal. 10. I have carefully considered the rival contentions advanced by learned counsel for the appellants as well as the learned Public Prosecutor. I have perused the materials, and evidence on record and scrutinised them carefully. 11. On a careful consideration of the contentions advanced from the side of prosecution as well as defence, and on scrutiny of the materials available on record, I am of the opinion that the net result purely depends upon the answer to the question as to how far the evidence of PW 3 is acceptable. 12. Relying upon the decisions of this Court connected with the offence under the Travancore - Cochin Prohibition Act (Act XIII of 1950) reported in Patchan Chellappan v. State of Kerala, 1960 KHC 69 : 1960 KLT 271 : 1960 KLJ 228 : ILR 1960 Ker. 427 : 1960 (1) KLR 169, the learned counsel pointed out the necessity for independent evidence in the present case. The following passages from the above decision brought to my notice by the learned counsel: "............ Repelling this argument His Lordship Sankaran, J held that: "The evidence of the prosecutor may or may not be reliable. All the same, it cannot be denied that it will be extremely unsafe and risky to convict an accused solely on the strength of the evidence of the prosecutor. This is particularly so in respect of offences under the Prohibition Act. Under this Act large powers have been conferred on the Prohibition officers in the matter of conducting house searches and also in the matter of arresting persons found to be contravening the provisions of the Act. The legislature appears to have been conscious of the possible dangers that may follow from the misuse of that power and that obviously is the reason why a special Section like S.34 was inserted in the Act to regular the manner in which searches under the act have to be conducted."? However any possible prejudice to the prosecution would not justify the non enforcement of the salutary provisions of the Act introduced with a view to safeguarding the liberty of the citizens of the lands. However any possible prejudice to the prosecution would not justify the non enforcement of the salutary provisions of the Act introduced with a view to safeguarding the liberty of the citizens of the lands. A way out of the difficulty would be for the prosecution not to be satisfied by merely declaring such witnesses hostile but to subject them to a searching cross examination and bring out circumstances which would enable the Court to find that the witnesses are deliberately suppressing the truth in order to help the accused. Unless shown to be biased, persons who give evidence before Court that they have not witnessed the search but simply signed the search list at the instance of the officers, cannot be presumed to be speaking falsehood, for it is not impossible to find instances where searches are conducted by Excise Officers without taking the trouble of getting at respectable neighbours to witness it and subsequently securing the signature of one or two persons who could be easily prevailed upon to give them. In this case both PWs 3 & 4 give evidence that they were not present at the search and have not witnessed the arrack bottles being recovered from the house of the 1st accused. ................... It has also come out in evidence that there are seven or eight houses close to the 1st accused's house and no explanation is forthcoming as to why the presence of any one of these neighbours was not secured and no reason is given for preferring PWs 3 & 4 to the immediate neighbours of the accused."? 13. On the basis of the above decision, the learned counsel for the appellants submits that in spite of the fact that there are several houses adjacent to the place of occurrence, the prosecution failed to cite and examine at least one person from the locality and in spite of that, the prosecution obtained two persons from a place two Kms. away from the place of occurrence. Even then the said witnesses were turned hostile to the prosecution and as such, there is no independent source of evidence to corroborate the evidence of PW 3. away from the place of occurrence. Even then the said witnesses were turned hostile to the prosecution and as such, there is no independent source of evidence to corroborate the evidence of PW 3. The learned counsel for the appellants, with the assistance of the decision of the Apex Court reported in Gopal v. State of M.P., 2002 KHC 1471 : AIR 2002 SC 2337 : 2002 (9) SCC 595, submits that prosecution has miserably failed to establish the conscious possession of contraband. Relying on the decision reported in Sukumaran v. State of Kerala, 1961 KHC 159 : 1961 KLT 584 : 1961 KLJ 693 : ILR 1961 (2) Ker. 510 : 1961 (2) KLR 197 , counsel submits that the prosecution failed to prove the conscious possession and it is illegal to infer conscious possession from the proximity of the accused to the article in question. It is also the case of the counsel for the appellants that the alleged seizure of the contraband article was not from the physical possession of the appellants or from the premises under their possession or ownership. As revealed from the case of the prosecution itself, the contraband articles were seized from thicket near I.D.A. ground, Idukki. Therefore, the counsel submits that unless the prosecution proves that the thicket from where the contraband articles were seized actually belongs to the appellants or else they were in exclusive possession and the appellants were the persons responsible for keeping the contraband articles inside the thicket, the appellants cannot be convicted. In support of the above submission, the learned counsel very much relied upon the decision of this Court in Sambasivan v. State of Kerala, 2007 (1) KHC 462 . 14. The learned Public Prosecutor, stoutly opposing the above submission, submits that facts and circumstances involved in the case cited by learned counsel for the appellants are entirely different, especially in those cases, the offences alleged are different under different statutes. As far as this case is concerned, according to the learned Public Prosecutor, after appreciating evidence and materials on record, the Trial Court came into a correct conclusion and there is no illegality in the finding arrived at by the Court below. 15. As pointed out earlier, the fate of the prosecution case clearly depends upon the acceptability of the evidence of PW 3 who is alleged to have detected the offence. 15. As pointed out earlier, the fate of the prosecution case clearly depends upon the acceptability of the evidence of PW 3 who is alleged to have detected the offence. Absolutely, there is no independent evidence to corroborate the testimony of PW 3. The evidence of PW 3 has to be appreciated in the back ground of the defence pleaded by the accused which can be seen from S.313 statement. In S.313 statement, both the accused have categorically stated that one week prior to the alleged incident, the second appellant had filed a complaint before the Police against the brother of the accused No. 1 and PW 3 came to the house of the accused on 11/12/2005, and the neighbours resisted the Sub Inspector from taking the first appellant from her house to the Police Station. PW 3 during his deposition before the Court below has admitted the previous raid. In this juncture, it is worth while to recollect that the alleged date of occurrence in this case is immediately after the second day of the resistance of neighbours from taking the first appellant from her house. It is suggested during the cross examination of PW 3 that when his attempt was failed to take the first accused from her house, he gave a warning that he will show them. It is relevant to note that even according to PW 3, he got the information regarding the illicit act at about 11 p.m. on 13/12/2005 and he reached in the spot at about 11.30 p.m. on the same day. Though he had stated that he went along with the police party, no details are given as to who are the members of the party. He claimed that he himself prepared Ext. P1 Mahazar. No other members of the party has seen examined to prove the prosecution case regarding the detection. In the absence of giving the details of members of the Police party, that portion of the evidence cannot be relied upon. It is also relevant to note that two days prior to the alleged seizure, PW 3 went to the house of the appellants and his attempt to take the first appellant was defeated by the resistance of the neighbours consisting of substantial numbers. In chief examination, he admitted that he had gone to the house of the appellants for search. It is also relevant to note that two days prior to the alleged seizure, PW 3 went to the house of the appellants and his attempt to take the first appellant was defeated by the resistance of the neighbours consisting of substantial numbers. In chief examination, he admitted that he had gone to the house of the appellants for search. So on a conjoined reading of the deposition of PW 3, during his cross examination as well as chief examination, it can be safely concluded that his attempt to take the first appellant into custody and to remove her to the Police Station, which were done two days prior to the date of incident of the present case was resisted by the local people. If so, there is no explanation from the part of PW 3 as to why he went to the spot without sufficient force for the alleged detection and seizure especially, in the night. In this juncture, it is relevant to note that apart from the mere statement that he and the party went to the spot, there are no details as to how many members were in the party and who are the persons consisted of the party etc. It is also a fact that PW 3 has got information regarding the alleged illicit distillation at about 11 p.m. If that is true, there was sufficient time for him to make arrangements to constitute a strong squad for the alleged raid and seizure. It is also relevant to note that the information was to the effect that A2 involved in the illicit distillation act with the assistance of A1 who is a lady. Since the involvement of a lady is informed in advance, especially when the alleged place of occurrence was near the place where PW 3 was resisted by a group of neighbours, it was incumbent and PW 3 is duty bound to obtain assistance of woman Constable for conducting the search and arrest of female accused. Regarding those aspects, there is no convincing and plausible explanation. Non examination of any member of the party cast doubt on the veracity of the deposition of PW 3, especially his evidence is not corroborated from any independent source. 16. It is also relevant to note that the property from where the contraband articles were seized was not within the exclusive possession and ownership of the appellants/accused. Non examination of any member of the party cast doubt on the veracity of the deposition of PW 3, especially his evidence is not corroborated from any independent source. 16. It is also relevant to note that the property from where the contraband articles were seized was not within the exclusive possession and ownership of the appellants/accused. It is pertinent to note that no scene mahazar is drawn in this case apart from Ext. P1 seizure mahazar. Of course, there is some description regarding the spot from where it is seized. In the absence of proper scene mahazar and since the accused were not arrested from the spot where the seized materials were kept, the appellants/accused cannot be connected with the alleged commission of the offence, especially when the place of occurrence is open to anybody. It is also the case of the appellants/accused that adjacent to the place where contraband articles were seized, several people are residing. Therefore, the decision reported in Sambasivan's case (cited supra) becomes relevant. 17. The only evidence that connects the accused with the alleged offence is the deposition of PW 3 which says that when he reached at the place of occurrence, he had seen A1 pouring some liquid from a bucket to a 2½ litre can using a funnel with the help of A2. It is also the case of PW 3 that he identified the accused with the help of the search light. The above version of PW 3 is not supported by any other evidence either documentary or oral. As pointed out earlier, no scene mahazar is drawn in the present case and therefore, there is no documentary evidence to substantiate the prosecution case with respect to the place of occurrence. The evidence of PW 3, the detecting officer who is naturally interested in the prosecution case, is not supported by any independent evidence. As stated earlier, none of the members of the party who claimed to have accompanied PW 3 was examined. So the version of PW 3 that the detection was effected by the police party itself is doubtful. As mentioned earlier, the strength of the force is not given and details are also not furnished. Apart from that, if any other person accompanied him, the said person could have been examined and thereby render assurance for the correctness and acceptability of the evidence of PW 3. As mentioned earlier, the strength of the force is not given and details are also not furnished. Apart from that, if any other person accompanied him, the said person could have been examined and thereby render assurance for the correctness and acceptability of the evidence of PW 3. In this case, though PWs 1 and 2 are shown as independent witnesses to prove the prosecution case including the detection and Ext. P1 seizure mahazar, they turned hostile to the prosecution. When they were examined in the Court, they have categorically deposed that they were taken to the Police Station and asked to put their signature in the paper in which Ext. P1 was prepared. The Trial Court came into a conclusion that they were deposing before the Court screening the real truth so as to help the accused and the Court below came to the said finding on the basis of their admission of signature in Ext. P1 Mahazar. The above approach seems to be incorrect and illegal as the same is diametrically opposed to the decision of the Apex Court in Ritesh Chakarvati's case (cited supra). The depositions of PWs 1 and 2 have also to be appreciated in the entire factual background of the case. As stated earlier, though there were several persons residing near and about the place of occurrence, none of them was cited and examined as witness to prove the detection and the seizure. Even the driver of the vehicle belonging to the Police Department in which PW 3 went to the spot was not cited and examined. PWs 1 and 2 further stated before the Court below that they are conducting a night shop near the Police Station and they have acquaintance with the Police personnel. But, when they deposed before the Court below that their signatures were obtained from the Police Station, there is no reason to discard the above depositions of PWs 1 and 2. If that be so, it can be seen that there is a tendency on the part of PW 3 to create the evidence in favour of the prosecution and he managed to obtain signatures of PWs 1 and 2 from the Police Station. So the above conduct of PW 3 renders his evidence as doubtful. If that be so, it can be seen that there is a tendency on the part of PW 3 to create the evidence in favour of the prosecution and he managed to obtain signatures of PWs 1 and 2 from the Police Station. So the above conduct of PW 3 renders his evidence as doubtful. The submission of the learned counsel for the appellants that no prudent man would believe that the appellants / accused would have engaged in illicit distillation, within one day interval from the date of raid of the house by PW 3, assume relevance and importance in the above factual background. Therefore, on an overall assessment of the entire facts and circumstances involved in the case and on appreciation of the sole evidence viz., the deposition of PW 3, the version of PW 3 that he had identified A1 and A2 during the night with the help of search light cannot be accepted. As the place of occurrence is open to all, the correctness of the identity of A1 and A2 by PW 3, especially, during the night and that too unsupported by any other evidence, the accused cannot be found guilty based upon the solitary and interested version of PW 3. Therefore, the only conclusion which can be arrived at is that the prosecution has miserably failed to prove its case beyond reasonable doubt. 18. In the light of the above discussion and the materials available on record, I am of the view that the prosecution has miserably failed to establish its case against the appellants beyond reasonable doubt and the appellants / accused are entitled to get benefit of doubt. Accordingly, Criminal Appeal is allowed and the appellants are acquitted of all the charges levelled against them and the bail bond, if any, executed by them will stand cancelled and they are set at liberty.